a) Clause 15.01-5S (Neighbourhood Character). > > b) Clause 15.01-5L (Preferred Neighbourhood Character). > > c) Clause 15.01-5L-01 (Tree Conservation). > > d) Clause 16.01-1L (Housing Change).

3. The proposal fails to respond to the preferred neighbourhood character for the Garden Suburban Precinct 13 referenced in Clause 15.01-5L, owing to the proposed building bulk, attached built form and limited ground floor setbacks for landscaping opportunities. 4. The proposal fails to meet the landscape character objective and the decision guidelines of the Significant Landscape Overlay Schedule 9. Specifically, the development fails to adequately provide an appropriate landscape response and retain tree 2. 5. The setbacks and landscaping of the development will not adequately respect the existing and preferred neighbourhood character, failing to adequately protect the amenity of surrounding properties, contrary to the objectives of the Design and Development Overlay Schedule 11. 6. The proposed development fails to meet the objectives and standards of Clause 58:

a) Standard D5 (Integration with the street) > > b) Standard D10 (Landscaping). > > c) Standard D12 (Parking location objectives). > > d) Standard D23 (Site Services). > > e) Standard D24 (Waste and Recycling).

1. Following a compulsory conference the applicant served notification of amended plans and other supporting documents in accordance with the provisions of the Tribunal's PNPE9 Practice Note ('PNPE9'). I am satisfied this service was carried out in accordance with PNPE9.
2. At the hearing, the applicant sought to substitute the amended plans and supporting documents. The other parties did not contest this request. I provided consent to this substitution of amended plans and supporting documents (confirmed by Order 1 above) and the hearing proceeded on this basis.
3. Importantly, following consideration of the amended plans, council reviewed and advised it had changed its position to one of 'qualified support' for the proposal. This included support for:
   • The proposed building envelope (at ground level);
   • The overall height and scale of the proposal; and
   • The childcare centre and food and drinks premises uses at ground level.
4. Council proposed draft conditions to address its remaining concerns that included:
   • Retention of an existing canopy tree on the review site - Tree # 2 shown on the submitted landscape plan. (I discuss this further under Key Issues below)
   • Availability of deep soil zones shown on the landscape plan.
   • Inconsistencies with surface treatment between submitted development plans and landscape plans.
   • Undersized waste bin storage areas as shown in the submitted Waste Management Plan (WMP).
   • Proposed car parking layout and access ramp arrangement.

I have given weight to this in my decision and findings.

1. The respondents continue to oppose the proposal and submit the revised proposal:
   • Is too large in scale, height and intensity for the site;
   • Does not provide sufficient on-site parking;
   • Introduces non-residential uses (Childcare Centre and Food and Drink premises) at ground level of the subject building which is inconsistent with the RGZ purposes.
2. The applicant submits the proposal has appropriately addressed the relevant objectives of the Scheme and results in an appropriate planning outcome for the site and the local area. It submits the proposal 'aligns with the strategic direction for more intensive development in the RGZ, particularly given its location within the Principal Public Transport Network and positioning on the edge of the Blackburn Neighbourhood Activity Centre'.
3. The applicant also relies on the planning evidence of Travis Finlayson, Town Planner with Ratio Consultants and landscape evidence of Kylie May, Arborist with John Patrick Landscape Architects Pty Ltd.
4. Having reviewed this evidence and responses to cross-examination by the parties, in the absence of any contrary evidence, I accept the respective evidence statements and recommendations from the experts in the context of my reasons and findings that follow.

1. Amendment VC283 ('AmVC283') to the Whitehorse Planning Scheme was gazetted on 2 September 2025. This gazettal occurred after the conclusion of the proceeding.
2. According to the Explanatory Report accompanying AmVC283:

Amendment VC283 to the Victoria Planning Provisions and all planning schemes is required to update the Planning Policy Framework to implement Plan for Victoria (Department of Transport and Planning, 2025). The amendment updates and introduces policy, removes references to Plan Melbourne 2017-2050: Metropolitan Planning Strategy and makes general drafting improvements and clarifications.

1. I issued an order to provide an opportunity for the parties to provide a written submission addressing any implications arising from AmVC283 for this proceeding. The order also provided the opportunity for the parties to make submissions in response to the submission of another party.
2. Council agrees that AmVC283 reinforces opportunities to intensify housing opportunities within appropriate locations, particularly development sites such as the review site, that are close to nominated activity centres, rail stations and other service infrastructure. Council also agrees that amended clause 15.01-4S (Healthy Neighbourhoods) supports the proposal's location attributes and amended clause 16.01 (Housing) is consistent with the new policy focus on meeting housing targets for local government, as set by State Government.
3. However, council says that policy setting changes to clause 12.06-1S (Sustainable Environment - Urban Forests) sets a new target for a 30% tree canopy outcome for new development. Council says this supports council's submission that seeks to retain the existing canopy tree ('Tulip Tree') located in the frontage (north-east side of the review site to Whitehorse Road/Vine Street).
4. Apart from the above qualification, council says its revised position to support the proposal shown in the substituted plans is consistent with the policy changes introduced by AmVC283.
5. The applicant submits policy changes introduced by AmVC283 supports its amended proposal. Particularly highlighting the opportunity for increased housing on the subject land within a RGZ.
6. The applicant further submits that changes to clause 11.01-1S (Settlement) are applicable to its' revised proposal, noting the review site is on land designated for more intense residential development. The applicant also notes that changes to clause 13.01-3S (Urban Heat) seeks to reduce urban heat effects by encouraging more tree canopy planting and retention of vegetation where possible. While seeking removal of vegetation across the site, the applicant says it has addressed this policy shift by introducing 59 replacement trees that are now proposed as part of the new landscape design.
7. In considering these submissions, I agree that AmVC283 provides an additional level of housing policy support for the proposal before me. I find the proposal is consistent with these policy changes (clauses 11 and 16).
8. For the reasons above I have given weight to AmVC283 in my findings and decision.
9. I also note that both parties raised policy changes to clause 13 that introduced new policy settings seeking to address 'Urban Heat' outcomes. I accept this is an important policy focus associated with new development proposals. I discuss this further under Key Issues below.

1. Amendment VC136 ('AmVC136') introduced the 'Better Apartment Design Guidelines' and was gazetted into the Scheme on 13 April 2017. The original application was submitted prior to this date (30 December 2014). I therefore agree with the applicant and council that clause 58 is not applicable as an assessment tool here, as the proposal enjoys the benefit of the transitional provision set out in clause 32.07-6 of the RGZ2.
2. I also note that transitional provisions under clause 55 specify that the Scheme in force immediately before the approval date of AmVC136, continue to apply to applications for a permit under section 72 of the Act, if the original application was lodged before that date. This is the case here.
3. I agree with this position and have applied this approach in my assessment that follows.

1. The proposed amendments, as reflected in the substituted plans, were fully detailed in party submissions. I particularly note key changes proposed to the existing Planning Permit:
   • The construction of an additional storey (fifth (sic) storey).
   • Reduction in the number of apartments from 39 to 24.
   • The use and development of a childcare centre and food and drink premises at the ground floor level, and consequential revised basement and ground floor layout.
   • Changes to colours/materials/windows.
   • Removal of trees.
   • A reduction in the car parking requirements pursuant to Clause 52.06.[5]
2. The ground floor layout containing the proposed childcare and food and drink premises is also shown below:

Figure 1: Proposed Ground Floor Plan, TP1.01 - Source: Council written submission

1. Council's written submission also noted the following regarding the proposed uses and floor layouts:
   • Childcare centre use:
     • Hours of operation - Monday to Friday - 7am to 6.30pm.
     • Maximum number of staff - 10 staff members.
     • Maximum number of children - 40 children.
   • Food and Drink premises use:
     • Hours of operation - Monday to Friday - 6.30am to 4.00pm & 5pm to 9.30pm. Saturday and Sunday - 8am to 3pm & 5pm to 9.30pm.
     • Maximum number of staff - 20 staff members.
     • Maximum number of patrons - 50 patrons inside and 30 patrons outside.
   • The first floor (level 1) includes 11 apartments with balconies and includes a minimum setback of 4.46 metres to the northern boundary, 3 metres to the eastern boundary, 4.5 metres to the southern boundary and 2.83 metres to the western boundary.
   • The amendments remove the previously approved central break in the southern façade at level 1.
   • The second floor (level 2) includes 3 apartments and the upper levels of 6 apartments from the level below. Minimum setbacks of 4.46 metres to the northern boundary, 3 metres to the eastern boundary, 7 metres to the southern boundary and 4.5 metres to the western boundary.
   • The third floor (level 3) includes 7 apartments with balconies and includes a minimum setback of 5 metres to the northern boundary, 5 metres to the eastern boundary, 9 metres to the southern boundary and 4.5 metres to the western boundary.
   • The fourth floor (level 4) includes 3 apartments with balconies and includes a minimum setback of 6.8 metres to the northern boundary, 7 metres to the eastern boundary, 10.5 metres to the southern boundary and 6.5 metres to the western boundary.
   • The fifth floor (roof plan) includes an outdoor communal area (58 square metres) and roof top services.
   • External materials comprise of light weight cladding, black metal, precast/polished concrete rendering.
   • Removal of all trees within the site including buildings and works within proximity to street trees located within Vine Street.
2. Relevant elevation plans are provided below.

Figure 2: North and South Elevations - Source: Substituted Plans

Figure 3: East and West Elevations - Source: Substituted Plans

1. Having considered the respective submissions and evidence of the parties, assisted by my site visit, I consider the following key issues are relevant in my determination of the proposal:
   • Does the proposal provide an acceptable planning response to its strategic planning policy setting and relevant Scheme provisions?
   • Does the proposal provide an acceptable planning response to character considerations?
   • Does the proposal provide an acceptable response to amenity?
   • Does the proposal achieve an acceptable planning response to parking and traffic?
2. On balance and for the reasons outlined, I find the amended proposal is in my view, an improved design to the previous Planning Permit. This is so in terms of street appearance and overall building articulation to Whitehorse Road and Vine Street.
3. I also support the introduction of 'non-residential' uses (childcare centre and food and drink premises) at ground level. I find this will help activate the street setting and complement the nearby activity centre uses that form part of the adjoining Blackburn Neighbourhood Activity Centre. Importantly, the childcare facility on the north-west corner of the site will help visually 'open out' the site to the street and add some opportunity for landscape treatment.
4. While I acknowledge the revised southern setback to the rear neighbours introduces a different articulation form and massing from the approved design under the existing Planning Permit, I am satisfied the proposal still achieves an appropriate response to the now preferred built-form policy setting. As I noted above, this policy setting includes the DDO11 and SLO9. I find the additional fifth storey is also consistent with this policy setting. The visual presence to the street setting has been appropriately articulated and treated and provides an appropriate built form outcome.
5. I would also reiterate this new policy setting has been reinforced through the changes introduced by AmVC283. I am satisfied the revised design and building setting shown in the substituted plans is consistent with this amended policy setting and will result in an acceptable planning outcome on the review site.

1. Before moving into the Key Issues, it is necessary to summarise the key findings and decision of the Tribunal that approved a four storey apartment development on the review site in 2017.[6] (Noting the existing Planning Permit has now been extended until 2028.)
2. Of importance, I note the Tribunal Member (Member Carew) considered this proposal in the context of a similar RGZ2. However, the SLO9 and DDO11 did not apply to the site at that time.
3. Nevertheless, Member Carew found that a policy balance was required in assessing the merits of the proposal. Particularly given the context of the Garden Suburban Precinct 13 guidelines and distinguishing between areas of 'substantial change' and 'natural change.' I find this policy approach still applies to the amended proposal before me.
4. In directing that a permit should issue for the proposal, Member Carew commented on the different character context that existed at the corner of Whitehorse Road and Vine Street. Particularly highlighting that the corner context and main road location of the review site, combined with its' consolidated size was important, as it allowed opportunity for more 'substantial building form.' I agree with the Member in this assessment and find this setting still applies and is a relevant consideration.
5. While the Member had concerns regarding the transition form of the southern elevation of the building, the Member was satisfied the overall design and setbacks of the upper levels of the building and site coverage (54%) were appropriate for the site. However, to reduce potential amenity impacts towards the properties adjoining the site to the south, the Member required a physical break in the upper level-built form, together with a minimum 3.0m landscape buffer along the southern boundary.
6. In the context above, I find there is strong strategic policy support for this proposal. Noting the GRZ was in place when the existing Planning Permit was originally granted by the Member.
7. The review site remains a consolidated land parcel over 1,000sqm. I find this is a large site that is strategically well-located on a main road and with a prominent corner position. The site remains within the Principal Public Transport Network ('PPTN') and retains its excellent walking proximity to the Blackburn Neighbourhood Activity Centre and Blackburn Railway Station.
8. I find the revised Planning Policy Framework and the Municipal Planning Strategy ('MPS'), together with the RGZ purposes and design objectives in the DDO11, provides strong encouragement for increased housing within this established urban area. I find this policy support has been strengthened by the policy changes arising from AmVC283.

Does the proposal provide an acceptable planning response to its strategic planning policy setting and relevant Scheme provisions?

1. As I noted above the review site is subject to the following zone and overlays that trigger a planning permit for the proposal:
   • Residential Growth Zone - Schedule 2 ('RGZ2');
   • Significant Landscape Overlay - Schedule 9 (SLO9); and
   • Design and Development Overlay - Schedule 11 (DDO11).[7]

1. Relevant purposes of the RGZ2 include:
   • To provide housing at increased densities in buildings up to and including four storey buildings.
   • To encourage a diversity of housing types in locations offering good access to services and transport including activity centres and town centres.
   • To encourage a scale of development that provides a transition between areas of more intensive use and development and other residential areas.
   • To ensure residential development achieves design objectives specified in a schedule to this zone.
2. It is important to note the RGZ2 applies to the review site and land further to the south of the review site along Vine Street, extending down to Railway Road. This zone setting has implications in how one is to assess the transition of built form on the review site and along its southern boundary.
3. I have also noted that clause 58 apartment provisions do not apply to the proposal. Nevertheless, buildings and works associated with a Section 2 use (in this case the childcare centre and food and drinks premises) also require a planning permit. The RGZ2 also provides for a 'discretionary' building height of 13.5m. I make further comment on this under the summary of the new DDO11 provisions.
4. The review site remains in an area identified for 'Substantial Change' as shown in the Housing Framework Plan at clauses 02.04 and referenced at clause 16.01-1L. As well as remaining in the 'Garden Suburban Precinct 16' at clause 15.01-5L and the RGZ2.

Significant Landscape Overlay Schedule 9 ('SLO9')

1. The SLO9 did not apply to the review site when the existing Planning Permit was directed to be issued by VCAT. Relevant purposes of the SLO9 include:
   • To retain and enhance the canopy tree cover of the Garden and Bush Suburban Neighbourhood Character Areas.
   • To encourage the retention of established and mature trees.
   • To provide for the planting of new and replacement canopy trees.
   • To ensure that development is compatible with the landscape character of the area.
2. I note the schedule to the SLO9 also applies to land identified in specified 'neighbourhood character' areas.
3. While the SLO9 establishes the importance of retaining and enhancing tree canopy trees that feature in the Garden and Bush Suburban Neighbourhood Character Areas, the review site also falls within a designated 'substantial change area.' Thus, I find there is a need to balance the key SLO9 purposes with other policy settings addressing housing growth, higher densities, and diverse housing types. This approach is also reinforced by relevant objectives of policy at Clause 16.01-1L (Housing Change).

1. The DDO11 also did not apply to the review site when the existing Planning Permit was directed to be issued by VCAT. A relevant purpose of the DDO11 seeks 'to identify areas which are affected by specific requirements relating to the design and built form of new development'.
2. The schedule to the overlay includes the following relevant design objectives:
   • To promote mid-rise development in the residential growth corridors to accommodate housing at increased densities and a diversity of housing type.
   • To ensure development contributes to a high-quality public realm in relation to human scale by providing a pedestrian-friendly urban environment.
   • To ensure the height and built form of new buildings provide an acceptable built form interface, amenity outcomes, and transition to adjoining neighbouring lower scale residential areas in the General Residential Zone and the Neighbourhood Residential Zone.
   • To maintain the visual prominence of landscaping and ensure space for medium and large trees.
   • To encourage lot consolidation in order to achieve the maximum building heights and to provide for sufficient building setbacks to deliver high levels of internal amenity.
3. I have given particular weight to the introduction of this overlay to the review site. Noting it also applies over land further to the south of the review site, thereby including the properties of the respondents in this review.
4. The overlay specifically addresses building heights, form and scale. I am satisfied the overlay was supported by strategic planning work undertaken in the Whitehorse Residential Corridors Built Form Study, 2019 (prepared by Ethos Urban).[8] The overlay schedule provides for and encourages new development up to six storeys and 19.0m in height.
5. It is important at this juncture to address the 'discretionary' building heights expressed in the RGZ2 and the DDO11. Council and the applicant support increasing the approved building height of the existing Planning Permit from four storeys to five storeys. Council notes the discretionary height on the site could consider up to six storeys under the DDO11. This is a view also supported by the applicant and its planning expert Mr Finlayson.
6. While the respondents have raised concerns regarding the increased building height proposed on the site, I find the 2019 strategic planning work undertaken to establish the DDO11 into the Scheme, has currency and encourages increased height outcomes as now proposed on the review site.
7. Additionally, I also agree with Mr Finlayson that the building height and transition considered by the Tribunal in 2017, has also been superseded by the introduction of the DDO11.
8. I say this noting the building transition now expected under the design objectives expressed in the DDO11, focuses on a changed transition form from the one considered by Member Carew. Importantly, the zone interface to the south of the review site also includes a combination of the RGZ and DDO11, which now extend and apply down to Railway Parade.
9. Thus, I find the building transition condition expected along the review site's southern boundary can be further tempered and considered in the context of the DDO11 and RGZ interface that now applies. This is the approach I have applied.
10. For the reasons expressed above, I am satisfied the amended proposal will result in an acceptable planning response to its strategic planning policy setting and relevant Scheme provisions outlined above.
11. I find the location of the review site in the PPTN, proximity to the Blackburn Neighbourhood Activity Centre and Blackburn Railway Station, application of the RGZ2, DDO11 and SLO9, makes the subject land an ideal candidate for increased housing density and diversity as proposed. As noted above, increased density, housing diversity and quality architecture and meaningful landscaping are planning outcomes sought by the zone and overlays that now apply.

Does the proposal provide an acceptable planning response to character considerations?

1. The respondents submit the excessive height of the proposal will result in visual bulk and a dominant built form that is inconsistent with the neighbourhood character and surrounding low-rise dwellings.
2. The respondents also say the revised proposal does not respond appropriately to adverse amenity impacts arising from excessive building massing towards their properties to the south (Units 4/2, 5/2 and 6/2 Vine Street). They submit this building massing will result in excessive overshadowing into their secluded private open space ('SPOS') and create excessive visual bulk.
3. Council and the applicant do not agree and consider the revised built form height, scale and setbacks to boundaries is appropriate for the site.
4. Mr Finlayson supports this. He is of the opinion that the revised proposal, including its increased height and amended setbacks, particularly along the southern boundary, is appropriate given the sites' physical context and the design objectives expressed in the DDO11.

1. I agree with the submissions of council and the applicant which is also supported by the evidence of Mr Finlayson. I find the revised layout and building height and form is appropriate to the policy and physical setting of the review site. I make this finding in the context of my reasons expressed above, particularly noting the application of the design objectives and decision guidelines in the DDO11.
2. The overlay specifically encourages a discretionary six storey building and 19.0m in overall height. The proposed building is still below this preferred height. I acknowledge submissions from the respondents that the building height will exceed the preferred 19.0m by some 0.8m due to the lift core. However, given the height is exceeded by the lift core that is centrally located on the building and not visible from direct views from the public realm, I support this minor height variation.
3. I also support the recommendation of Mr Finlayson to consolidate the rooftop plant to reduce potential bulk impact at that level. This is addressed in the draft conditions proposed by council. I also note the respondents conceded that the view of this additional level is unlikely to be perceptible when viewed from their SPOS areas. I observed this during my site visit.
4. I have already made findings regarding the proposed building transition treatment of the new built form along the southern boundary. I have agreed with Mr Finlayson that the expectations of transition treatment proposed under the existing Planning Permit should be tempered as the review site abuts a RGZ to the sensitive residential interface to the south. I find this principle is important and I have applied this in my assessment of the amended proposal.
5. I also note the first two levels of the new building will retain a minimum 3.0m setback from the southern boundary. I support the retention of this landscape buffer strip along this interface and consider this will bring meaningful opportunity for landscape planting and appropriate visual filtering of the built form proposed on the review site.
6. Additionally, as noted in the evidence of Mr Finlayson, a visible setback gap will continue to be maintained at the upper levels (levels 2 and 3). Mr Finlayson describes this in extracts of his evidence provided below.

1. While I acknowledge the upper level setback is more confined, I am satisfied the revised design will continue to provide an acceptable planning outcome at this interface.
2. The proposal must also be assessed against the relevant objectives outlined for the Garden Suburban Precinct 13. My assessment must also be tempered and balanced against the DDO11 design objectives and decision guidelines that apply.
3. In this regard, I note the following positive character settings and design outcomes achieved by the amended proposal:
   • Existing street trees in Vine Street will remain to provide context and character to the street and neighbourhood.
   • The first two levels of the new building will be set back 3.0m from Vine Street and the southern boundary. This will provide for some meaningful landscape treatment to these interfaces. I note this is also compliant with Standard B6 of clause 55. (While noting clause 55 is not a mandatory consideration here.)
   • Overall site coverage has increased from the existing planning permit proposal from 54% to 63.6%. However, I consider this is a minor variation within the context of the RGZ and DDO11 provisions that now apply to a corner site location.
   • Massing at upper levels has been considered by retaining a graduated and articulated upper-level setback, including a 7.0m setback for Level 2 and 9.0m setback for Level 3 from the southern boundary. This design approach was established by the existing Planning Permit proposal. These setbacks would also comply with Standard B17 requirements. (Noting clause 55 is not a mandatory consideration here.)
   • A central break in the building form, albeit this is less in dimension and depth at the upper levels from the existing Planning Permit proposal. Nevertheless, I find this revised design approach (combined with landscape buffer planting along the southern boundary) will assist in softening and appropriately filtering views of the built form from the properties to the south.
   • Overshadowing to the SPOS areas of properties to the south remains consistent and similar throughout the day to the previous Tribunal's findings for a four storey building on the review site.
4. Balancing the respective policy provisions that apply to existing and preferred character settings and the policy outcome that seeks to intensify residential potential and new built form (i.e. units and townhouses and flats and apartments are to be encouraged in substantial changes areas).

1. While supporting the substituted plans regarding building height, scale and setbacks to sensitive interfaces, council has concerns regarding the proposed vegetation removal and replacement landscape treatment that forms part of the revised proposal. It notes the Garden Suburban Neighbourhood Character area statement highlights:

.... formalised streetscapes comprising grassed nature strips, concrete footpaths, kerbs and channels, and buildings are generally visible along streets behind low front fences and open garden settings.

Gardens are typically established with canopy trees, lawn areas, garden beds and shrubs and there are typically well-defined property boundaries and consistent building siting.

1. Council agrees with the landscape evidence of Ms May that identifies the existing trees on the site that require removal under the SLO9. This includes:
   • Tree 1, Silky Oak (Grevillea robusta);
   • Tree 2, Tulip Tree (Liriodendron tulipifera);
   • Tree 4, Tarata;
   • Tree 6 (hedge), (Kohuhu);
   • Tree 8 Silver Birch; and
   • Tree 9, Tarata.

A second Silver Birch, within the front setback of No. 98 also requires a permit for removal.

1. However, council seeks further clarification from the applicant regarding the extent of 'deep soil' available for planting areas across the site. Council has some concerns that planting selection may also need to be revisited to ensure species are appropriate for local conditions. Council also seeks further information regarding the surface treatment between development and landscape plans. I am satisfied these matters can be appropriately addressed by permit conditions.
2. Council's key landscape outcome seeks retention of the existing Tulip Tree (Tree 2) located in the north-eastern frontage of the site. Council says the SLO9 encourages the retention of established and mature trees. It says this tree has been assessed by its arborist who says the tree is in good condition. The arborist recommends the proposed basement should be modified to protect and retain this tree in its current prominent position to Whitehorse Road
3. The applicant does not support this view and relies on the evidence of Ms May who says the root zone of this tree cannot be accurately determined to ensure if the basement can be modified sufficiently to keep the tree 'in-situ'. Ms May says the TPZ is likely to be 'too extensive' and the 'basement changes so significant', that the proposal would need to be altered substantially. (See diagram in council's written submission below that demonstrates the location of the tree and the Tree Protection Zone.)

Figure 4: Location of Tulip Tree in frontage of review site - Source: Council written submission

1. The applicant says it intends to replace the planting with additional frontage planting that it considers will ensure the building sits in a landscape setting as it presents to Whitehorse Road and Vine Street.
2. Ms May's evidence statement indicates that 20 trees (or tree groups) with 14 of these located within the site, were assessed by Arbor Survey on 12 April 2024. This assessment indicated all site trees were of 'low arboricultural' value (apart from a Tarata Tree located on the eastern boundary of No. 100 Whitehorse Road) which was assessed as having medium arboricultural value).
3. It is Ms May's opinion that the proposed basement of the amended proposal would result in a major encroachment to the Tulip Tree under AS4970:2025. While Ms May has not conducted a 'non-destructive root investigation' she was confident the root system would extend well into the area proposed for the basement. Her inspection of the tree also indicated there may be past damage to the tree that could also affect or lead to a reduction in its lifespan.
4. Ms May states that the subject tree '.... is not of such a high standard as to warrant the ongoing maintenance that will likely be required to ensure the safety of the public into the future. I therefore support its removal and replacement as part of the proposed development'. Ms May is also supportive of the landscape concept plan tabled by the applicant that indicated a planting of 59 new trees, of which 30 are species with potential to reach a height of 10.0m or greater.
5. Should a permit issue, Ms May recommends that all street trees be protected by tree protection fencing throughout any demolition or construction occurring on the site.

1. In the absence of any contrary evidence, I accept Ms May's evidence on these matters. While I accept the SLO9 encourages the retention of mature trees as part of new development, I accept the tested evidence and recommendations of Ms May that the subject tree can be removed.
2. I have not been persuaded by council's submission that Tree 2 requires retention. Ms May does not consider Tree 2 is significant that warrants its retention in this context. It is her expert opinion that a substantial redesign of the proposal would be required to accommodate a revised basement car park layout that ensured retention and protection of the subject tree in-situ.
3. Having reviewed the tabled landscape concept plan prepared by Human Habitats, I am satisfied the replanting proposed on the site is extensive and would suitably recreate and enhance the current landscape treatment I observed on the subject land. This would include removal of the Tulip Tree from the frontage to be replaced with a series of tree plantings along the front and side boundaries of the review site.
4. I am satisfied this level of planting, including new planting that would wrap around the ground floor childcare facility located along the grassed laneway to the western boundary, would result in a satisfactory landscape character setting that is sought by the SLO9.
5. For the reasons expressed above, I am satisfied the revised proposal will result in an acceptable planning outcome and provides an appropriate response to landscape expectations and preferred character outcomes sought in the GRZ2, DDO11 and SLO9.

Does the proposal provide an acceptable response to amenity?

1. The respondents submit the amended proposal will lead to a loss of amenity to the occupants of the properties abutting the southern interface. They say the additional building height and massing will lead to overshadowing of their SPOS areas and lead to a loss of privacy at this interface.
2. Respondents are also concerned the proposal introduces non-residential uses (Childcare Centre and Food and Drink premises) at ground level of the subject building is inconsistent with the RGZ purposes and will adversely impact residential amenity.
3. The respondents also submit the ground floor commercial car park and childcare drop off area proposed along the southern boundary will result in adverse noise and increased activity along their interface. They say adverse noise and odours will also arise from the operation of the food and drink premises.
4. Council submits it is '.... generally satisfied with the proposed amendments and considers that the changes will not cause unreasonable amenity consequences for neighbours having regard to reasonable amenity expectations'. It makes this submission noting the strategic vision for this area is for 'substantial change, including to existing RGZ properties to the south.
5. The applicant relies on the evidence of Mr Finlayson on these matters.

1. I have already made findings that the level of amenity that can be expected along the southern boundary, must be tempered in the context and extent of the GRZ2 zoning that covers the review site and properties further to the south of the review site. It must also be tempered in the context of the DDO11 design objectives that now apply to the review site and surrounds that I have discussed above.
2. In this context I am satisfied that the amended proposal has achieved a satisfactory planning outcome regarding building height, massing and setbacks.
3. Having reviewed the shadow diagrams accompanying the application, I agree with Mr Finlayson's assessment that the proposed overshadowing to the SPOS areas of the units to the south '.... is commensurate with that considered appropriate by the (sic) "previous" Tribunal'. I note and accept Mr Finlayson's assessment of each property and the conclusions he has reached on the shadowing impacts to the south. The shadowing will be to an acceptable level when assessed throughout the day.
4. I am also not persuaded by the respondents that the inclusion of non-residential uses, including the childcare facility and food and drink premises, is inappropriate in the GRZ setting of the site.
5. Mr Finlayson has undertaken an assessment of these proposed uses against the relevant provisions of clause 13.07-1l that deals with non-residential uses. Clause 13.07-1L seeks to provide for services and facilities needed by the community in a manner that does not detract from the amenity of the area.
6. Mr Finlayson is of the opinion that these uses 'can co-exist' within a residential development, without unreasonably impacting the amenity of residents within the development or residing in proximity to the site.
7. Mr Finlayson also notes the review site is on the edge of the Blackburn Neighbourhood Activity Centre and further Commercial 1 zoning to the east and says this is important. In this physical setting, Mr Finlayson notes it is not unusual to see a commensurate increase in non-residential activity, noting that childcare facilities and food and drink premises are often located within residential areas. He is satisfied the proposal would not result in a clustering of commercial type uses, given these uses will form part of the proposed residential apartment building.
8. I accept and agree with Mr Finlayson's evidence on this matter.
9. I note that the applicant has also agreed to a reduction of children at the childcare facility to 40. Proposed hours of use for both non-residential activities will also be controlled by permit condition, and the applicant has agreed to undertake an acoustic assessment of these uses as part of any permit condition if a permit issued. I note the draft acoustic report condition includes assessing noise impacts associated with the proposed drop off area associated with the childcare facility. I support these conditions.
10. Based on my reasons and findings above, I am satisfied the proposal provides an acceptable planning outcome and response to amenity.

Does the proposal achieve an acceptable planning response to parking and traffic?

1. The respondents say the proposed shortfall of parking of seven spaces will result in overflow parking in Vine Street and surrounding streets. They are also concerned with the proposed shared residential car park and waste collection area proposed in the basement of the subject building.
2. Council does not accept the Waste Management Plan ('WMP') that proposes collection of waste bins beside the parking access ramp as shown with the amended plans. Council says a redesign is required. This was discussed at the hearing. Based on this discussion I am satisfied this matter can be addressed through permit conditions that would require a revised WMP for further approval that addresses this issue. I note the draft conditions circulated by council have included such conditions.
3. The council also says the basement area serves 34 parking spaces and should include two-way ramp access to reduce congestion and delay on the ramp between motorists accessing the basement car park and access the at-grade car park. Council noted the applicant had not detailed any measures to specifically address this issue such as a signalling system with detector loops.

1. During further discussions on draft conditions the applicant agreed to the inclusion of a permit condition to address council concerns regarding use of the ramp to the basement car park. This included installing an automated warning signalling at the top and bottom of the basement ramp to indicate when a car is entering or exiting the ramp. The applicant has also agreed to the inclusion of a revised WMP to address council concerns on this matter as outlined above. I support these conditions.
2. A Traffic Impact Assessment ('TIA') prepared by SALT, dated 3 July 2026 was also substituted with the amended application plans. The TIA includes a detailed assessment of the statutory requirements for car parking, including a parking demand assessment as required under clause 52.06.
3. The TIA notes up to 10 car spaces (including four spaces in Vine Street and six in Whitehorse Road) could be added into on street parking through this proposal. The TIA also notes that one space will be allocated to the food and drink premises, eight spaces will be allocated to the childcare facility and 33 spaces provided for the future residents of the proposal. The report acknowledges the proposal still falls short of six spaces associated with the food and drink facility.
4. Despite the parking shortfall the TIA report highlights the site is well located and has excellent access to public transport options. Based on its parking demand assessment and survey results the report finds the parking shortfall can be accommodated by the existing on-street parking provided in the area.
5. In the absence of any traffic evidence presented by the parties, I have given weight to the parking and traffic assessment undertaken in the TIA report.
6. I am satisfied that the shortfall in proposed parking is acceptable and traffic movement arising from the revised proposal can be accommodated within the existing street network.
7. I say this noting the revised proposal results in a reduction of dwelling units from the previous approved proposal and additional on-street parking spaces (up to 10 spaces) will also become available in Vine Street and Whitehorse Road.
8. For the reasons outlined above I find the proposal will result in an acceptable planning outcome as sought under clause 52.06.

1. Draft conditions circulated by the council were discussed between the parties at the conclusion of the hearing.
2. I have considered the oral submissions made by the parties. The conditions set out in Appendix A to this decision reflect these discussions and my reasons and findings expressed above.
3. I find that the proposal improves the previous proposal in overall design, appearance and building articulation outcomes. I accept the revised southern setback to the rear has been altered from the previously approved design by Member Carew. However, my site inspection confirmed the revised setback still provides an acceptable setback that will ensure the amenity and outlook of residents in these properties will be retained to an acceptable level.
4. I also accept submissions from the applicant and council that the additional fifth level has been appropriately set back from boundaries and built form below, ensuring the additional level will not result in excessive building height or bulk when viewed from the public realm.

1. For the reasons given above, the decision of the responsible authority is set aside. An amended permit is granted subject to conditions as set out in Appendix A to this decision.

Use of the land for childcare centre and food & drink premises

Construct a building or construct or carry out works for a use in Section 2 of Clause 32.07-2

Construct a building or construct or carry out works in Schedule 9

Remove, destroy or lop any vegetation in Schedule 9

Construct a building or construct or carry out works in Schedule 11

Reduce (including reduce to zero) the number of car parking spaces required under Clause 52.06-5

Construct or alter access to a road in a Transport Zone Category 2

1. Before the development starts, or any trees or vegetation removed, amended plans (three copies in A1 size and one copy reduced to A3 size) shall be submitted to and approved by the responsible authority. The plans must be drawn to 1:100 scale, with dimensions, and be generally in accordance with the plans submitted by AXE Architects, Revision E, dated 03 July 2025 but modified to show:

(a) The locations of Tree Protection Zones (TPZ) and Structural Root Zone described in condition 6, with all nominated trees clearly identified and numbered on both site and landscape plans, and the requirements of conditions 6 and 7 to be annotated on the development and landscape plans.

(b) Demonstration of adequate provision for mailboxes with aperture heights in accordance with the requirements of Australia Post.

(c) Provision of convex mirrors within the basement to improve sight distances.

(d) Consolidation of roof top plant and services, including setting back the plant area an additional 2m from the southern boundary and a reduction in plant screen height to 1.6m.

(e) Replacement of Axon light weight cladding (Monument painted) with Precast concrete - Reckli Type C to the southern elevation at Level 2

(f) Deletion of vertical balcony screening to apartments 105, 106 and 107 and replacement with angled projecting ledges to prevent downward views.

(g) Introduction of louvred ceilings above the balconies to Apartments 105, 106 and 107.

(h) Relocation of the balcony to Apartment 202 to the southeastern corner, with a consequent reconfiguration of that apartment, deletion of the screening to the south facing balcony edge and addition of screening to the east facing balcony edge,

(i) Replacement of the planter box around the stair access to the basement on the ground floor plan with a wall to 1.2m in height.

(j) Introduction of a security entry gate and fencing to the childcare centre between the building and the acoustic barrier along the Whitehorse Road frontage on the ground floor plan.

(k) A notation that there will be no ventilation of the basement or waste storage area to the southern interface.

(l) Specification of glazing and cladding materials to be used on all external walls, including details demonstrating that they will not reflect unreasonable glare when viewed from any nearby road network to the satisfaction of the responsible authority.

(m) Development plans to reflect all sustainability features indicated in the approved Sustainability Management Plan ('SMP'). Where features cannot be visually shown, include a notes table providing details of the requirements (ie. energy and water efficiency ratings for heating/cooling systems and plumbing fixtures, etc). The plans are to be generally in accordance with the plans submitted with the application but modified to show:

1. Bicycle parking consistent with Clause 52.34 of the Whitehorse Planning Scheme.
2. Any changes required to comply with the SMP under condition 8.

(n) Notation on site plans indicating that any obscured glazing be manufactured obscured glass. Obscure film being applied to clear glazing will not be accepted.

(o) Height of disabled car parking space bollard notated.

(p) Annotation stating the removal of parking signs within Vine Street requires consent from the responsible authority and will be at the cost of the developer/owner.

(q) Alignment of existing sewer drain along southern boundary.

(r) Lighting Strategy report in accordance with Condition 47.

(s) The following reports to be amended as required will form part of the endorsed documentation:

1. An amended Landscape Plan in accordance with Condition 3.
2. Landscaping Maintenance Plan in accordance with Condition 4.
3. Amended SMP in accordance with Condition 8.
4. An amended waste management plan in accordance with Condition 12.
5. An amended car park management plan in accordance with Condition 14.
6. An amended acoustic report in accordance with Condition 37.

All of the above must be to the satisfaction of the responsible authority. Once approved these plans and documents become the endorsed plans of this permit.

1. The layout and operation of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plans and documents and must not be altered or modified without the further written consent of the responsible authority.

1. No building or works must be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the responsible authority. The plan will be generally in accordance with the landscape plans prepared by Human Habitats dated July 2025 but modified to show:

(a) Concentration of canopy and screening vegetation along the south and west boundaries and including a mix of deciduous and evergreen species to provide for daylight to the courtyards of the adjoining properties to the south.

(b) Planting within and around the perimeter of the site comprising trees and shrubs capable of:

1. providing a complete garden scheme,
2. softening the building bulk,
3. providing some upper canopy for landscape perspective,
4. minimising the potential of any overlooking between habitable rooms of adjacent dwellings.

(c) A schedule of the botanical name of all trees and shrubs proposed to be retained and those to be removed incorporating any relevant requirements of condition No. 1.

(d) The proposed design features such as paths, paving, lawn and mulch.

(e) A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.

(f) Permeable paving product specifications.

(g) Deletion of notation stating, 'childcare design indicative only and subject to change'.

(h) Deletion of all additional hard surfacing (concrete) within the Whitehorse Road frontage and the reinstatement of nominated 'permeable areas' as shown on development plans prepared by AXE Architects, Revision E, dated 03 July 2025. Nominated 'permeable areas' are to comprise of landscaping including lawn areas, garden beds and canopy trees.

(i) Identification of planting to be contained within planter boxes, consistent with the architectural plans to be approved under Condition 1.

(j) Trees and shrubs to be shown in planter boxes along the western edge of the childcare outdoor play area, where located above the basement.

(k) Consistency with the Condition 1 requirements.

Unless with the prior written consent of the responsible authority, all tree planting and landscaping works as shown on the endorsed plans must be completed prior to the occupation of the development to the satisfaction of the responsible authority.

Once approved these plans become the endorsed plans of this permit.

1. Prior to the commencement of the development, a Landscaping Maintenance Plan, prepared by a suitably qualified consultant, must be submitted to the responsible authority. The landscaping maintenance plan must include, but is not limited to:

(a) Irrigation system for all trees and landscaping including details of frequency and water delivery method.

(b) Details of the ongoing maintenance procedures to ensure that the garden areas remain healthy and well maintained to the satisfaction of the responsible authority. This must include:

1. Irrigation frequency and delivery method.
2. Drainage.
3. Pruning and mulching.

(c) Plans and cross-sections of any planting containers, and calculated soil volume per container.

(d) Consistency with the Condition 1 requirements.

1. The garden areas shown on the endorsed plan must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the responsible authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.

1. Prior to commencement of any building or demolition works on the land, TPZ's must be established on the subject site (and nature strip if required) and maintained during, and until completion of, all buildings and works including landscaping, around the following trees in accordance with the distances and measures specified below, to the satisfaction of the responsible authority:

(a) Tree Protection Zone distances:

1. Tree 15 - 2.2 metre radius from centre base of tree.
2. Tree 16 - 2.0 metre radius from centre base of tree.
3. Tree 17 - 2.0 metre radius from centre base of tree.
4. Tree 18 - 12.0 metre radius from centre base of tree.
5. Tree 19 - 7.9 metre radius from centre base of tree.
6. Tree 20 - 9.1 metre radius from centre base of tree.

(b) Tree Protection Zone measures are to be established in accordance with Australian Standard 4970-2009 and are to include the following:

1. Erection of solid chain mesh or similar type fencing at a minimum height of 1.8 metres in height held in place with concrete feet.
2. Signage placed around the outer edge of the perimeter fencing identifying the area as a TPZ. The signage should be visible from within the development, with the lettering complying with AS 1319.
3. Mulch across the surface of the TPZ to a depth of 100mm and undertake supplementary watering/irrigation within the TPZ, prior and during any works performed.
4. No excavation, construction works or activities, grade changes, surface treatments or storage of materials of any kind are permitted within the TPZ unless otherwise approved within this permit or further approved in writing by the responsible authority.
5. All supports and bracing should be outside the TPZ and any excavation for supports or bracing should avoid damaging roots where possible.
6. No trenching is allowed within the TPZ for the installation of utility services unless tree sensitive installation methods such as boring have been approved by the responsible authority.
7. Where construction is approved within the TPZ, fencing and mulching should be placed at the outer point of the construction area.
8. Where there are approved works within the TPZ, it may only be reduced to the required amount by an authorized person only during approved construction within the TPZ and must be restored in accordance with the above requirements at all other times.

1. During construction of any buildings, or during other works, the following tree protection requirements are to be adhered to, to the satisfaction of the responsible authority:

(a) All buildings and works for the demolition of the site and construction of the development (as shown on the endorsed plans) must not alter the existing ground level or topography of the land within the TPZ of trees identified above.

(b) For trees identified above, no roots are to be cut or damaged during any part of the construction process.

(c) Any excavation within the TPZ of the street tree must be undertaken by hand, hydro excavation or air spading to ensure adequate protection of the tree's root network.

1. Prior to the commencement of any buildings or demolition works, an amended SMP must be submitted to and approved by the responsible authority. This SMP must be consistent with the updated development plans, and be generally in accordance with the SMP previously submitted (dated 13/9/2024), but amended to include:

(a) A complete, published BESS Report, consistent with the updated development plans, with an acceptable overall score of at least 50% and also which meets the 'pass' marks in the categories of Water, Energy, Stormwater and Indoor Environment Quality (IEQ) or that is otherwise to the satisfaction of the responsible authority.

(b) Include a preliminary set of NatHERS scores for a representative sample of the apartments.

(c) Provide a Preliminary BCA Section J Energy Efficiency Report for commercial areas of the development including information regarding artificial lighting, window tinting, window SHGC and U values, double glazing, etc.

(d) Examine what commitments can be made on the use of low embodied energy (or low embodied greenhouse gas) concrete, in line with recently published industry net zero transition plans and net zero industry guidelines.

(e) For the childcare centre, that may potentially have significant levels of allergies and asthma in the regular occupants, provide a commitment to HEPA grade filters or equivalent for pollen/bushfire smoke (PM 2.5) in air handling units (if there is air recirculation) and/or in fresh air intakes for improved indoor air quality.

(f) Bicycle parking consistent with Clause 52.34 of the Whitehorse Planning Scheme.

1. All works must be undertaken in accordance with the endorsed ESD Management Plan to the satisfaction of the responsible authority, and the approved development must operate in accordance with this Plan, to the satisfaction of the responsible authority. No alterations to the ESD Management Plan may occur without the written consent of the responsible authority.
2. Prior to the occupation of the development, the development must be constructed in accordance with the endorsed SMP report to the satisfaction of the responsible authority.

1. Prior to the commencement of buildings or works on the land, a Construction Management Plan ('CMP'), detailing how the owner will manage the environmental and construction issues associated with the development, must be submitted to and approved by Council.

The CMP must be prepared and managed by a suitably qualified person who is experienced in preparing construction management plans.

This plan is to be to the satisfaction of the responsible authority and must be prepared in accordance with the City of Whitehorse Construction Management Plan Guidelines.

The CMP must address any demolition, bulk excavation, management of the construction site, land disturbance, hours of construction, noise, control of dust, public safety, traffic management, construction vehicle road routes, soiling and cleaning of roadways, discharge of any polluted water, security fencing, disposal of site waste and any potentially contaminated materials, location of site offices, redirection of any above or underground services, and site security lighting.

The CMP shall include suitable washing facilities to be provided and utilised on site for the cleaning of all construction vehicles prior to them exiting the designated property so as to prevent any grease, oil, mud, clay or other substance to fall or run off a vehicle onto a road, or into any drain under the road.

The CMP must be implemented to the satisfaction of the responsible authority and a contact name and phone numbers for the site manager must be provided to the responsible authority.

Once submitted to and approved by the responsible authority, the CMP will form part of the documents endorsed as part of this planning permit.

When approved the CMP will form part of this permit and must be complied with, to the satisfaction of the responsible authority, to the extent that this is in the control of the owner of the land. The owner of the land is to be responsible for all costs associated with the works to be undertaken in accordance with the requirements of the CMP.

1. Prior to the commencement of any buildings or demolition works, and concurrent with the plans submitted under condition 1, an amended Waste Management Plan ('WMP') to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the amended WMP will be endorsed and will form part of this permit. The amended WMP must be generally in accordance with the WMP prepared by Frater Consulting Services dated 3 July 2025, but modified to include:

(a) Consistency with the Condition 1 requirements.

(b) Waste collections for this development are to be completed internally by private waste collection contractor.

(c) Waste collection vehicles are to enter and leave the developed site in a forward direction.

(d) Mobile Garage Bin usage is to be shared by the occupiers of the development.

(e) All waste collection on the Subject Land shall only be permitted to occur between the hours of:

(f) Waste collection within the outdoor area not to occur during the hours of operation permitted for the Child Care Centre use as specified within Condition 17.

(g) Sufficient space for bulk/hard waste items.

(h) Identification of the location adjacent to the bin room within the basement that the waste collection vehicle will stop to collect waste, ensuring that no car parking spaces will be blocked.

1. Waste collection is to be managed in accordance with the approved WMP, unless with the written consent of the responsible authority.

1. Prior to the commencement of buildings or works on the land, a Parking Management Plan, detailing how car and bicycle parking areas and accessways and waste collection will be allocated and managed, must be submitted to and approved by the responsible authority.

This plan is to be to the satisfaction of the responsible authority and must include, but is not limited to, the following:

(a) Allocation of all parking spaces to individual dwellings and tenancies.

(b) Pedestrian access and movement within the car parking areas, including strategies to minimise the potential for conflict between pedestrians and vehicles. This may include line marking such as hatched shared areas, direction signs and/or physical barriers.

(c) Allocation of bicycle spaces to tenancies and visitors.

(d) Signing of car and bicycle parking spaces.

(e) Location of bicycle parking signs in accordance with Clause 52.34-5.

(f) Details of signage to accommodate waste collection i.e. No Stopping authorised vehicles excepted during specific hours so that waste collection can occur.

(g) Any changes required by Condition 1.

(h) Security arrangements for occupants/users of the development, including details on intercoms and card readers.

(i) Method to discourage drop off/pick up activity offsite.

(j) A program and/or signage within the site visible within the building and carpark, educating parents about drop off/pick up activities.

(k) Education and awareness initiatives and incentives for staff and visitors to encourage more sustainable modes of travel to/from the site.

(l) Details of how access to the waste collection areas will be achieved by waste collection vehicles and how these areas will be secured.

(m) Automated warning signalling at the top and bottom of the basement ramp to indicate when a car is entering or exiting the ramp.

Once submitted to and approved by the responsible authority the Parking Management Plan will form part of the documents endorsed as part of this planning permit.

When approved the Parking Management Plan will form part of this permit and must be implemented to the satisfaction of the responsible authority.

1. The proposed uses permitted must always accord with the endorsed plans/reports and must not be altered or modified without the further written consent of the responsible authority.
2. Except with the written consent of the responsible authority, the childcare centre land use hereby approved is limited to 40 children at any time, to the satisfaction of the responsible authority.
3. Except with the prior written consent of the responsible authority, the childcare centre use hereby permitted may only operate between the hours of 7:00am and 6:30pm, Monday to Friday.
4. Except with the prior written consent of the responsible authority, the external childcare outdoor area must not be used before 7:00am or after 6:30pm.
5. Except with the written consent of the responsible authority, the childcare centre land use hereby approved is limited to 10 staff at any time, to the satisfaction of the responsible authority.
6. Unless with the prior written consent of the responsible authority, the food and drink premises use must only operate during the following hours:
   • Monday to Friday - 6:30am - 4:00pm and 5:00pm - 9:30pm
   • Saturday to Sunday - 8:00am - 3:00pm and 5:00pm - 9.30pm
7. Except with the written consent of the responsible authority, the food and drink premises land use hereby approved is limited to 80 patrons (50 patrons indoors and 30 outdoors) at any time, to the satisfaction of the responsible authority.
8. Except with the written consent of the responsible authority, the food and drink premises land use hereby approved is limited to 20 staff at any time, to the satisfaction of the responsible authority.
9. All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service to the satisfaction of the responsible authority.
10. No external sound amplification equipment, loudspeakers or public address system are to be used for the purpose of announcement, broadcast, playing of music or similar purpose.
11. The premises must be provided with a filter system to eliminate cooking odours, fumes, and smoke to the satisfaction of the responsible authority.
12. The loading and unloading of goods from vehicles associated with the childcare centre/food and drink premises uses hereby approved must only be carried out within the boundaries of the site or a dedicated loading bay and must not affect the function of Whitehorse Road and Vine Street.
13. The development must provide the capacity for television signal distribution to each dwelling, and any satellite dish, antenna or similar structure must be designed and located at a single point to the satisfaction of the responsible authority.
14. All mechanical exhaust systems for the car park hereby approved must be located and sound attenuated to prevent noise and general nuisance to the occupants of the surrounding properties, to the satisfaction of the responsible authority.
15. All treatments to prevent overlooking must not include 'Translucent film' on windows.
16. All privacy screens and other measures to prevent overlooking as shown on the endorsed plans must at all times be maintained to the satisfaction of the responsible authority.
17. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the responsible authority.
18. The car parking areas, bicycle parking spaces, loading bays and accessways as shown on the endorsed plans must be formed to such levels so that they may be used in accordance with the endorsed plans, and must be properly constructed, line marked, surfaced and drained. The car park and accessways must be maintained to the satisfaction of the responsible authority. Parking areas, loading bays and access lanes must be kept available for these purposes at all times.
19. At all times noise emanating from the land must comply with the requirements of the Environment Protection Regulations 2021 (as amended from time to time) as measured in accordance with the Noise Protocol to the satisfaction of the responsible authority.
20. Goods, materials, equipment and the like associated with the use of the land must not be displayed or stored outside the building.
21. The uses permitted by this permit must not, in the opinion of the responsible authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods, or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.
22. All building plant and equipment on the roofs and the development, is to be concealed to the satisfaction of the responsible authority. Noise emitting plant equipment such as air conditioners, must be shielded with acoustic screening to prevent the transmission of noise having detrimental amenity impacts. The construction of any additional plant, machinery or other equipment, including but not limited to all service structures, down pipes, aerials, satellite dishes, telecommunication facilities, air-conditioners, equipment, ducts, flues, all exhausts including car parking and communication equipment must include appropriate screening measures to the satisfaction of the responsible authority.

1. Before condition 1 plans are endorsed, an amended Acoustic Report to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. Once approved, the Acoustic Report will be endorsed and will then form part of the permit. The amended Acoustic Report must be generally in accordance with the Acoustic Report prepared by Vipan Engineers and Scientists Limited dated 15 October 2024, but modified to include the following:

(a) Consistency with the Condition 1 requirements.

(b) Whether any acoustic fencing or other treatment is necessary along the southern boundary to mitigate any noise impacts on the properties to the south coming from the childcare centre car parking area and/or the Food and Drink Premises.

1. Before the use commences, the requirements of the endorsed Acoustic Report must be carried out, and any ongoing requirements must be implemented for the duration of the building's operation in accordance with the endorsed Acoustic Report and to the satisfaction of the responsible authority.
2. Before the use commences, a letter of confirmation from a suitably qualified acoustic consultant must be submitted to and approved by the responsible authority to certify the development has been constructed in accordance with the updated Acoustic Report.
3. Any acoustic fencing required by this permit or within the Acoustic Report must be constructed and maintained to the satisfaction of the responsible authority.

1. Stormwater that could adversely affect any adjacent land shall not be discharged from the subject site onto the surface of the adjacent land.
2. All stormwater drains and on-site detention systems are to be connected to the legal point of discharge to the satisfaction of the responsible authority prior to the occupation of the building/s. The requirement for on-site detention will be noted on your stormwater point of discharge report, or it might be required as part of the civil plans' approval.
3. Detailed stormwater drainage and/or civil design for the proposed development are to be prepared by a suitably qualified civil engineer and submitted to the responsible authority for approval prior to occupation of the development. Plans and calculations are to be submitted with the application with all levels to Australian Height Datum (AHD). All documentation is to be signed by the qualified civil engineer.
4. Prior to works commencing the applicant/owner is to submit design plans for all proposed engineering works external to the site. The plans are to be submitted as separate engineering drawings for assessment by the responsible authority.
5. The Applicant/Owner is responsible to pay for all costs associated with reinstatement and/or alterations to Council or other Public Authority assets as a result of the development. The applicant/owner is responsible to obtain all relevant permits and consents from Council at least seven days prior to the commencement of any works on the land and is to obtain prior specific written approval for any works involving the alteration of Council or other Public Authority assets. Adequate protection is to be provided to Council's infrastructure prior to works commencing and during the construction process.
6. The qualified civil engineer when undertaking civil design must ensure that the landscape plan/s and drainage plan/s are compatible. The stormwater drainage and on-site detention system must be located outside the TPZ of any trees to be retained.

1. Before the development commences, a Lighting Strategy must be prepared to outline how the amenity of the area is to be protected during nighttime hours. The Lighting Strategy must be prepared in accordance with the Safety By Design Guidelines to the satisfaction of the responsible authority.

Once submitted and approved to the satisfaction of the responsible authority, the Lighting Strategy will from part of the endorsed plans as part of this planning permit.

1. All external lights must be of a limited intensity and must ensure no unreasonable nuisance is caused to adjoining or nearby residents.
2. The approved lighting must be installed and maintained and operated in accordance with requirements of the Lighting Strategy by the building manager and owners of the site for the life of the building, to the satisfaction of the responsible authority

1. Prior to the commencement of the use, the redundant crossing on Whitehorse Road must be removed and the area reinstated to kerb and channel to the satisfaction of and at no cost to the Head, Transport for Victoria.

1. A Development Infrastructure Levy in accordance with the approved Development Contributions Plan which applies to the land must be paid to Whitehorse City Council as the Collecting Agency not more than 21 days prior to, the grant of a building permit under the Building Act 1993 (Vic) or the commencement of development of any buildings and works associated with the permitted development, whichever occurs first; or the owner must enter into an agreement with Whitehorse City Council as the Collecting Agency to pay the Development Infrastructure Levy within a time specified in the agreement.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not commenced within two (2) years from the date of issue of this permit.

(b) The development is not completed within four (4) years from the date of this permit.

(c) The use does not start within two (2) years of completion of the development.

(d) The use is discontinued for a period of two (2) years.

The responsible authority may extend the periods referred to if a request is made in writing pursuant to the provisions of Section 69 of the Planning and Environment Act 1987 (Vic).

[1] No planning permit is triggered for the proposal under the DCPO1.

[2] Council has issued a Notice of Decision to amend the existing permit to include two additional levels (six storeys overall) containing 59 apartments on 22 July 2025.

[3] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all this material will be cited or referred to in these reasons.

[4] Mecurio v Whitehorse CC [2017] VCAT 1200.

[5] Paragraph 1.3 from council's written submission.

[6] Mecurio v Whitehorse CC [2017] VCAT 1200.

[7] The SLO9 and DDO11 did not apply to the review site and surrounds at the time of the existing Planning Permit approval.

[8] This document is a reference document in the Scheme and underpins the content of the DDO11.